Declaratory Decree and Conferment of New Rights

Declaratory Decree and Conferment of New Rights Case Laws Civil Law Civil Revision Declaratory Decree - New Rights Knowledge - Civil Law Lahore High Court Litigation & Arbitration Solutions - Civil Law Mr. Justice Amin-ud-Din Khan in his judgment has decided the issue regarding declaratory decree and conferment of new rights in Civil Revision No. 231 of 2009.

1. Through this civil revision the petitioners-defendants have challenged the judgment & decree dated 04.04.2009 passed by the learned Additional District Judge, Rawalpindi, whereby the appeal filed by the respondent-plaintiff was accepted, by way of which, the judgment & decree dated 03.05.2006 passed by the learned Civil Judge 1st Class, Rawalpindi dismissing the suit, were reversed.

2. The brief facts of the case are that the plaintiff-respondent No.1 on 19.01.1995 filed a suit for declaration that the plaintiff along with others is owner in possession of land bearing Khewat No.917, Khatoni No.1640, Khasra No.1341 (8-kanals 10-marlas), Khasra No.1342 (20-kanals 16-marlas), Khasra No.1343 (6-kanals) total measuring 35-kanals 6-marlas situated in revenue estate of Narra Tehsil Kahuta District Rawalpindi as per Jamabandi for the year 1991-92 and defendants No.4 to 7 have no right, title or interest over the same and as a consequential relief a decree for permanent injunction restraining the defendants from encroaching upon, interfering with the possession and ownership of the plaintiff over the same or from making “Natore” of the same in any manner whatsoever. The case of plaintiff is that the plaintiff along with others is owner in Deh and is entitled for “Shamlaat” and also successor in interest of “Aulad Dewan Nouroze” and suit property is specifically and exclusively meant for legal heirs of “Aulad Dewan Nouroze” and plaintiff is from the Aulad of Dewan Nouroze, therefore, a declaration was sought.

3. The written statement was filed and suit was contested. It is the case of defendants No.4 to 7 that the plaintiff has not given any particulars of “others” who according to him are owners in the Deh. It is denied in the written statement that the plaintiff is from the Aulad of Dewan Nouroze and further that the suit property is for the Aulad of Dewan Nouroze. It is stated that part of the suit land is an evacuee property and vests in defendant No.1 and Khasra No.1342 is a Nullah. Issues were framed and the parties were directed to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the completion of trial vide judgment & decree dated 03.05.2006 suit was dismissed by the learned trial court. An appeal was preferred before the learned first appellate court, which was accepted vide judgment & decree dated 04.04.2009 and the suit was decreed. Hence, this civil revision.

4. Learned counsel for the petitioners/defendants argues that the plaintiff-respondent miserably failed to establish that the whole of the suit property was for “Aulad Dewan Nouroze” as Shamlat Deh and further he failed to establish that he is from Aulad of Dewan Nouroze, therefore, the findings recorded by the learned trial court are in accordance with law and the learned first appellate court fell in error while setting aside the judgment & decree passed by the learned trial court and decreeing the suit of the respondent/plaintiff. Lastly argues that when the suit has been filed in a representative capacity, the provision of Order I Rule 8 of the CPC has not been complied with and the case law relied by the learned first appellate court “PLJ 1983 Supreme Court 262 (Haji Saleh Muhammad and 2 others Vs. Haji Jumma Khan Agha and 4 others)” is not applicable to the facts of this case and the suit was defective one. Prays for acceptance of this civil revision and setting aside the judgment & decree passed by the learned first appellate court.

5. On the other hand, learned counsel for the respondent/plaintiff argues that he has produced various copies of Record of Rights as well as pedigree table to establish that property is for “Aulad Dewan Nouroze” and further that pedigree tables produced as Ex.P-6 to Ex.P-8 establish that the plaintiff is from the Aulad of Dewan Nouroze. Stats that the petitioners-defendants have not proved the case pleaded by them that they have purchased the suit property from one of the legal heirs of Dewan Nouroze and further they have any right in the suit property.

6. I have heard the learned counsel for the parties at full length and also gone through the record as well as the case law relied by the learned first appellate court with regard to Order I Rule 8 of the CPC.

7. When questioned to the learned counsel for the respondent/plaintiff that how the learned first appellate court was justified in granting a declaration of ownership in favour of plaintiff with regard to whole of the suit property when the plaintiff does not claim to be the right holder in the whole of the property, when there are non Muslim owners/right holders evacuees mentioned in his own documents i.e. Register Haqdaran Zamin for the year 1995-96 produced as Ex.P-2, Register Haqdaran Zamin for the year 1967-68 produced as Ex.P-3, Register Haqdaran Zamin for the year 1955-56 produced as Ex.P-4 and Register Haqdaran Zamin for the year 1905-06 produced as Ex.P-5; learned counsel states that he cannot defend the fact that whole of the property was not Shamlat Deh for “Aulad Dewan Nouroze”. There were non Muslim owners mentioned in the column of ownership in the above mentioned documents. This admission as well as documentary evidence produced by the respondent-plaintiff himself makes a dent in the findings recorded by the learned first appellate court on issue No.1.

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